CIV 03-156 KBM/LCS.
July 22, 2005
ORDER GRANTING EXTENSION UNDER FED. R. APP. P. 4(a)(5)
On May 6, 2005, I entered an opinion and final judgment and dismissed this action with prejudice. See Docs. 110 111. Plaintiffs admittedly failed to file a notice of appeal within the thirty-day deadline. Rather, on June 10, 2005 just days after the deadline had run, they filed a motion requesting an extension to do so pursuant to FED. R. APP. P. 4(a)(5). Doc. 116. That rule of procedure provides:
The district court may extend the time to file a notice of appeal if:
(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and
(ii) regardless of whether the motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.
FED. R. APP. P. 4(a)(5). Defendants oppose the motion. Doc. 117. Although it is a close question, ultimately I conclude that the motion should be granted.
In Pioneer Investment Servs. v. Brunswick Assocs., Ltd. P'ship, 507 U.S. 380 (1993), the Supreme Court examined the meaning of "excusable neglect" in the context of a bankruptcy proceeding. The Pioneer Court established a four-prong test to evaluate whether circumstances are properly characterized as demonstrating excusable neglect: "(1) danger of prejudice to the [non-moving party], (2) the length of the delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the movant acted in good faith. Id. at 395. The Tenth Circuit has determined that this analysis also should control in the context of motions for extension filed pursuant to FED. R. APP. P. 4(a)(5). See United States v. Torres, 372 F.3d 1159, 1162 (10th Cir. 2004).
Three of the four prongs clearly support granting the extension. The delay in this case is minimal — just a matter of days, and there is no allegation of bad faith on the part of Plaintiffs or their counsel. Moreover, Defendants have proffered nothing more than a bare bones assertion that an extension "would be unfair and result in prejudice to Defendants." Doc. 117 at 3. The focus of inquiry is therefore directed to the third prong — the reason for the delay. Indeed, "fault in the delay remains an important factor — perhaps the most important single factor — in determining whether the delay is excusable." City of Chanute, Kansas v. Williams Nat'l Gas Co., 31 F.3d 1041 (10th Cir. 1994).
As grounds to support an excusable neglect finding, Plaintiffs rely on two circumstances. First, "Plaintiffs and counsel had to consider certain options relating to the Appeal, as well as the costs bills which have been submitted by the respective Defendants." Doc. 116 at 2. However,
Counsel's need to review the record, consult with the client, and where counsel deems it desirable to obtain an additional legal perspective, are typical prefatory steps common to the appeal process. These actions, which are totally within control of counsel, are expected to be completed within the thirty day period prescribed by FED. R. APP. P. 4(a)(1). It is laudable for an attorney to seek the advice of outside counsel in evaluating the merits of an appeal, but it is in no way extraordinary. Furthermore, in the absence of a ruling by the court, nothing presented counsel from filing a timely notice of appeal and later dismissing the appeal if counsel concluded it should not be pursued.Bishop v. Corsentino, 371 F.3d 1203, 1207 (10th Cir. 2004). Thus, under Tenth Circuit precedent, this first circumstance offers Plaintiffs no relief.
As to the asserted second circumstance of excusable neglect, counsel for Plaintiffs sets forth the following explanation for the failure to calendar the appeal notice deadline:
there is a system in place whereby items are placed on the calendar at the law firm in which the undersigned practices. The undersigned has a secretary who is very professional and good at her job. During this period of time she was having to cover for two attorneys, instead of just one, due to staff leaving and the lag time associated with hiring new staff in a rural community like Lovington. However, irrespective of how the internal process failed, it is recognized that the undersigned is responsible for the proper calendaring of the date upon which notice of appeal should be filed.Doc. 118 at 3. In essence, Defendants maintain that because the failure to calendar the June 6, 2005 due date was admittedly within the control of Plaintiffs' attorney, "[t]his inadvertence cannot be characterized as excusable neglect that would allow an extension of time. . . ." Doc. 117 at 2.
Yet, as the Pioneer decision notes,
Although inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute "excusable" neglect, it is clear that "excusable neglect" . . . is a somewhat "elastic concept" and is not limited strictly to omissions caused by circumstances beyond the control of the movant.Pioneer, 507 U.S. at 392 (emphasis added). By its own terms, neglect "encompasses both simple, faultless omissions to act and, more commonly, omissions caused by carelessness." Id. at 388.
Accordingly, the focus should be placed on whether the neglect is "excusable." The Supreme Court "conclude[d] that the determination is at the bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission." Id. at 395. From my review of Tenth Circuit precedent, it appears that when an omission results from ignorance of the law or incorrectly construing an unambiguous rule, the equities lie against granting an extension. See United States v. Torres, 372 F.3d 1159, 1161 n. 1, 1163-64 (10th Cir. 2004) ("defense counsel's misinterpretation of a readily accessible, unambiguous rule cannot be grounds for relief unless the word `excusable' is to be read out of the rule.").
Here, however, the neglect apparently arose from simple "inadvertence" due to a temporary staffing shortage at a critical time as to the filing of an appeal in this case. It should be noted that the omission did not result from a sloppy calendaring system, untrained staff or lack of oversight by the attorney. In fact, throughout this litigation, the Court has been impressed by the competency, diligence and professionalism of all counsel and their office staff.
See e.g. George v. City of Wichita, Kansas, 353 F. Supp.2d 1131 (D. Kan. 2005) (inadvertent mailing of order to client at former address found "excusable neglect"); Pincay v. Andrews, 389 F.3d 853 (9th Cir. 2004) (en banc) (affirming grant of extension when "failure of a `carefully designed' calendaring system operated by experienced paralegals that heretofore had worked flawlessly").
See Jennings v. Rivers, 394 F.3d 850 (10th Cir. 2005) (addressing excusable neglect in the context of FED. R. CIV. P. 60(b)) ("A court may take into account whether the mistake was a single unintentional incident (as opposed to a pattern of deliberate dilatoriness and delay), and whether the attorney attempted to correct his action promptly after discovering the mistake.")
Having performed the Pioneer balancing test to arrive at what I believe to be an equitable decision, I will exercise my discretion and grant an extension based upon excusable neglect for the late filing. I must emphasize that I do so based upon the limited and specific circumstances presented here: a single incident of inadvertence in an otherwise exemplary law office practice, an immediate response by Plaintiffs' counsel to remedy the situation once the omission was discovered, the failure of Defendants to identify any specific undue prejudice caused by granting an extension, and the minimal amount of delay to these proceedings.
IT IS HEREBY ORDERED that Plaintiffs' Motion to Extend Time to File Notice of Appeal (Doc. 116) is GRANTED. Plaintiff shall have ten (10) days from the entry of this order to file a notice of appeal.